Elena Kagan on Families & Children

Grants to religious organizations ok for family services

Kagan called a memorandum that she wrote as a 27-year-old law clerk to Justice Thurgood Marshall "the dumbest thing I ever read." Kagan elaborated, "I indeed believe that my 22-year-old analysis was deeply mistaken. It seems now utterly wrong to me to
say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Court's statement" that the projects authorized by the
AFLA-including pregnancy testing, educational services, consumer education, etc. are not themselves "specifically religious activities," and they are not converted into such activities by the fact that they are carried out by organizations with
religious affiliations. As that Court recognized, the use of a grant by a particular religious organization [does not of itself] constitute a violation of the Establishment Clause [unless used for a] "specifically religious activity."

1st Amendment protects videogame violence as "speech".

A California law imposed $1000 civil fines on persons who sold or rented to minors "violent video games." The video game industry sued to prevent enforcement of the law.

HELD: Delivered by SCALIA; joined by KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN

Video games are a form of speech and are subject to protection under the First Amendment because it has proved difficult to distinguish between politics and entertainment. Games communicate ideas through literary devices. A well defined constitutional tradition is that restrictions based on the content of speech are permitted only in only a few areas, such as obscenity, incitement to violence, or uttering fighting words. Depictions of violence are not within this tradition. California has not chosen to restrict those other media, e.g., Saturday morning cartoons, therefore California's law is underinclusive, suggesting that it disfavors a particular speaker or viewpoint.

CONCURRED: ALITO concurs in judgment; joined by ROBERTS

The California law should have been struck down on due process grounds as "vague": It lacked sufficiently narrow definition of "violent video game" so that a retailer would be put on notice. The Court should not have resorted to the First Amendment and should have been far more careful and moved with more deliberation in evaluating a new technology, since the future may find participating in a video game is actually different from watching movie.

DISSENT: THOMAS dissents

The Founders would not have seen any right to speak to a minor other than through his parents, which is what the California law permits.

DISSENT: BREYER dissents

The California law withstands other First Amendment's strict scrutiny.